Breaking with the past

Sir Paul Coleridge retired from the High Court last Tuesday. He was, in effect, forced to stand down as a family judge after launching a campaign in support of traditional marriage. On the same day, the president of the Family Division declared his support for binding cohabitation and no-fault divorce. But nobody has suggested that Sir James Munby should stand down.

Of course, the circumstances are very different. Munby is the senior family judge in England and Wales. Heads of division should certainly draw attention to perceived deficiencies in the law. Coleridge was a trial judge, dealing with the consequences of separation and divorce. Some litigants might have less confidence in a judge who thinks couples should work to maintain stable relationships within marriage.

But the deeper question raised by these examples is whether the law should lead public opinion or follow it. Coupled with that is the question of whether lawyers and judges have any more insight into public opinion than anyone else.

Munby made his suggestions in a substantial speech to his fellow judges, delivered at an event to celebrate the creation last month of a single family court in England and Wales. This was, he told colleagues, ‘truly a cultural revolution’. It marked the culmination of a process that had seen the Family Division created in 1971 from the the remains of the Probate, Divorce and Admiralty Division. ‘In years to come,’ he added, ‘it will come to be seen as the decisive break with the past.’

Turning to the substantive law, Munby said that cohabitation reform was ‘desperately needed’. Courts had no power to redistribute the assets of a cohabiting couple on separation, however long the relationship had lasted. ‘It is inconceivable that society will not right this injustice in due course,’ he predicted. ‘How many women are to be condemned to injustice in the meantime?’

Expanding on his comments at a news conference, Munby explained that the problem might arise when a wealthy man refused to marry the woman with whom he had been living. A couple could cohabit for 20 or 30 years, during which she would normally bring up their children and sacrifice her career prospects. Then, the woman might be ‘thrown on to the scrapheap’ with little earning potential. If the couple had been married, she would have been able to claim ‘very significant financial relief’ from him. But if she had not been able to persuade him to marry her, she would receive nothing.

The judges identified this as a problem more than 40 years ago. It clearly offends their sense of justice for women to be exploited in this way. No doubt there are some women who still rely on the myth of ‘common-law marriage’. To critics who say a woman should simply walk out of a relationship before any children are born if her partner refuses to marry her, the judges would presumably respond that life’s not like that.

Since 1971, the sole ground for divorce in England and Wales has been the irretrievable breakdown of marriage. But, to buy off opponents of ‘divorce by consent’, the Divorce Reform Act 1969 required petitioners to prove a ‘fact’ such as adultery, behaviour, desertion or separation. Such facts are not difficult to establish, Munby reminded reporters.

But a district judge has to ‘go through the ritual of considering whether the anaemic allegations contained in the petition drafted by agreement do or do not amount to unreasonable behaviour’. Legislating to remove all concepts of fault from the process, he argued, would bring some ‘intellectual honesty to the situation’ without undermining marriage.

Indeed, who needs a judge at all? As Munby asked in his speech: ‘May the time not come when we should at least consider whether the process of divorce still needs to be subject to judicial supervision?’

Pressed to explain, he told us he would support an administrative divorce process only in cases where there were no children of the family and both parties had given their consent.

But wouldn’t that put the weaker party under pressure to accept an inadequate financial settlement? No, he told me. Munby wanted to uncouple the divorce process from the financial remedies that followed it. And he insisted that the reform would make divorce no easier than it is now.

I suppose it’s logical. If you can get married at a register office, why shouldn’t you get divorced there? If you can get financial support when your partner throws you out, why get married in the first place? But it’s all pretty unromantic.

There was no immediate government support for Munby’s suggested reforms. And yet they are surely less radical than gay marriage, where the government was seen as leading public opinion rather than following it. Perhaps such things are better left to parliament.